Criminal Appeal Lawyers in Toronto

How to appeal a criminal conviction or criminal sentence

People do not always get the result they were expecting or hoping for at the end of a trial or sentencing hearing. In Canada, everyone has the right to appeal a conviction for a criminal offence to a higher court. Sentences can also be appealed, but the higher court must give permission first before sentence appeals can be heard.

Appeals are heard by different courts depending on how the original charge was prosecuted. If the Crown proceeded “summarily” the appeal must be heard in the Superior Court of Justice. If the Crown proceeded by indictment, the appeal must be heard at the Ontario Court of Appeal in Toronto.

It is important to understand that an appeal is not simply a rehearing of the trial that already happened. On appeal, the court is concerned only with whether a mistake was made during the trial. The court usually does not consider new evidence when it is hearing an appeal and makes its decision based on reviewing the transcripts of the trial and the rulings made during the trial.

It is important to have an experienced appeal lawyer working on any appeal. It can be difficult to spot and identify the legal errors made during a trial that may justify intervention by the appellate court. A judge or a jury doesn’t make a legal error just because they believe a witness who the defence disagrees with or accuses of not telling the truth. A successful appeal must find a legal flaw in the process that led to the outcome that the accused person is appealing from, and for many who have been through the trial itself, it is hard or impossible to separate “trial issues” from those that might be relevant on appeal.

Our firm has a lot of experience conducting appeals in the Ontario Court of Appeal, the Supreme Court of Canada, and in Superior Courts all across Ontario. Our experience has taught us how to spot legal errors that matter to appeal courts, how to carefully craft written arguments, and how to persuasively argue appeals in court. with a proven track record in Court is the most important thing you can do to help someone get bail. You need a lawyer who can persuasively present your plan for release and use the law and the facts to argue for you in court.

If you or someone you know needs a lawyer to help them with an appeal, contact us using the form on this web page immediately for a free consultation about your case.

The types of arguments are made on appeal

The arguments made on appeal differ depending on whether the trial was decided by a jury, or just by a judge. Where the trial is decided by the judge, the judge’s reasons for conviction become a critical part of the appeal process, and those reasons must be examined carefully for signs of error. Where it is a jury trial, however, there are no reasons for the conviction. The jury simply announces its verdict. In those cases, the trial judge’s instructions to the jury that are delivered at the end of the case become the appeal lawyer’s major focus. Being able to read the trial transcripts and the jury trial in order to find areas where the instructions to the jury were wrong, deficient, or misleading is a skill that comes from experience.

These are some examples of possible grounds of appeal:

Errors in pre-trial rulings: 

The arguments made on appeal differ depending on whether the trial was decided by a jury, or just by a judge. Where the trial is decided by the judge, the judge’s reasons for conviction become a critical part of the appeal process, and those reasons must be examined carefully for signs of error. Where it is a jury trial, however, there are no reasons for the conviction. The jury simply announces its verdict. In those cases, the trial judge’s instructions to the jury that are delivered at the end of the case become the appeal lawyer’s major focus. Being able to read the trial transcripts and the jury trial in order to find areas where the instructions to the jury were wrong, deficient, or misleading is a skill that comes from experience.

These are some examples of possible grounds of appeal

Insufficient reasons:

A trial judge’s reasons on a pre-trial motion or on the trial itself can be appealed if they fail to explain how the trial judge reached the decision he or she reached. For example, a trial judge’s reasons for conviction can be appealed if they don’t explain why the accused’s evidence was rejected and the complainant’s was accepted, despite the presence of inconsistencies or problems with both accounts. The trial judge’s reasons have to explain why the decisions that were made were made in the way that they were so that the parties and the appeal courts can understand what happened. Failing to do that is a frequent ground of appeal.

Unfair standards of scrutiny:

 In credibility cases, including sexual assault and domestic assault, it can sometimes be argued that the trial judge committed an error by applying higher scrutiny to the accused’s evidence than the evidence of the complainant and other Crown witnesses. This is seen in cases where trial judges reject an accused’s evidence entirely for minor inconsistencies and discrepancies, while accepting a complainant’s evidence wholesale despite major lies or contradictions.

Unreasonable verdict:

It is possible to argue that the evidence at trial was incapable of reasonably supporting a conviction. This argument can be made where the Crown’s evidence fails to disclose a criminal offence, the evidence of a key Crown witness is so plagued with problems it cannot reasonably be relied on, or where the Crown’s circumstantial evidence supports inferences other than that the accused is guilty.

How is an appeal started?

 
To start an appeal, the accused person must file a Notice of Appeal with either the Superior Court or the Ontario Court of Appeal. The Notice of Appeal must be filed within 30 days of the date that the accused person was sentenced, and is required to set out the proposed grounds of appeal.

Frequently asked questions about appeal proceedings:

Is it possibe to use new evidence on an appeal?

Normally, the appeal court will not consider new evidence at the appeal stage. However, there is an exception to this. The court will consider “fresh evidence” at the appeal if the accused can demonstrate the evidence should be admitted. The court considers:

  1. Whether the evidence could have been admitted at trial by due diligence;
  2. Whether the evidence is relevant to a decisive or potentially decisive issue in the trial
  3. Whether the evidence is credible and reasonably capable of belief
  4. Whether the evidence, if believed, could reasonably be expected to have affected the result

The test for admitting fresh evidence is difficult to meet. Usually, the main issues surround why the evidence that is sought on appeal wasn’t used at trial, and whether the evidence is credible and important. If the fresh evidence is accepted, the court must throw out the conviction and order a new trial. In some cases, fresh evidence is so powerful that an acquittal may be entered (for example, some DNA exoneration cases have proceeded as fresh evidence applications).

Fresh evidence is accepted more often on sentence appeals. Fresh evidence can be used to present the appeal court with new information about the accused since the time of the original sentencing hearing that may serve to reduce a sentence that has been ordered. For example, if the accused has completed additional treatment or counselling, it is important to get this information before the court that will be considering the sentencing hearing.

What happens if you win your appeal?

If a conviction appeal succeeds, there are two possible outcomes. First, the court may order a new trial. This is the usual remedy that is ordered. This means that the accused person will essentially go back to the start of the procedure and will have to defend themselves again at trial. That being said, before any case is prosecuted again, the Crown will re-evaluate its case to decide if it has a reasonable prospect of conviction, and if pursuing the prosecution again is in the public interest.

Second, the court may enter an acquittal. This is a relatively rare outcome, but it occurs in cases where the court is convinced that the conviction could not reasonably be supported by the evidence.

If a sentence appeal is successful, the remedy is usually to vary the length of the sentence. It is also possible to appeal the imposition of certain ancillary orders (like DNA orders and “161” orders that prevent an accused person from accessing the internet or going to certain public locations)

Is it possible to get bail?

It is possible to get bail pending appeal, but the process takes a lot of work and can be difficult. It is important to hire an experienced appeal lawyer as soon as a conviction happens to ensure there is enough time to put together a strong bail application, and to ensure the bail application can be heard on the same day that a sentence is imposed so that the accused doesn’t have to spend any time in jail.

A bail application must show the court that:

  1. The appeal is not frivolous
  2. Bail is not contrary to the public interest; and
  3. The person will surrender themselves into custody as required

Is it possible to suspend other orders, like driving prohibition?

After a trial, sentencing judges often impose other orders, like driving prohibitions and registration on a sex offender registry. If an accused person appeals their conviction, these other orders can be suspended until the appeal is determined. Suspending these orders requires a separate motion before the court that is hearing the appeal.

Our experience

  • R. v. F.B. (Ontario Court of Justice, Hamilton): A student was charged with assault with a weapon for brandishing a knife in the parking lot. After successful negotiations, the Crown agreed to diversion and withdrew the charges.
  • R. v. T.A.S. (Ontario Court of Justice, North York): Charges involving assault with a weapon and assault causing bodily harm were withdrawn on the day of trial.
  • R. v. DS (Ontario Court of Justice, Etobicoke): A teacher was found guilty of assault for allegedly choking a student. After reference letters and other materials were filed as part of the arguments on sentencing, client was granted an absolute discharge.
  • R. v. AM (Superior Court of Justice, Brampton): Client was acquitted of assault bodily harm after a trial. The allegation involved a claim that the client had broken the arm of a six month old baby. The defence called competing expert evidence from a renowned orthopaedic surgeon showing the injuries may have been caused by an accidental fall.
  • R v XX (Ontario Court of Justice, Scarborough): A teacher was accused of assault causing bodily harm for kicking a desk into a student, fracturing the student’s arm. At trial, the defence was that the desk hitting the student’s arm was an accident. The teacher was acquitted.
  • R. v. J.D. (Ontario Court of Justice, Toronto): The client was charged with sexual assault. The defence was that the sexual touching was consensual, and that a complaint was made only after the accuser because worried their significant other would find out about his unfaithfulness. After the cross-examination of the complainant at trial, the Crown conceded the frailties in its case made it impossible to prove the charges beyond a reasonable doubt and invited the Court to acquit the accused.
  • R. v. D.C. (Ontario Court of Justice, Burlington): A teacher was accused of more than 25 sexual offences against 14 different students. The defence at trial was that rumours and collusion among the students had generated false stories of sexual misconduct by the teacher. After a four week trial, the teacher was found not guilty on all counts.
  • R. v. L.E. (Superior Court of Justice, Thunderbay): A retired school principal was accused of sexual offences by three different accusers, dating back to the 1980s. One of the complainant’s was the client’s ex-wife, and another was a former student. The client was acquitted of all charges after a trial.
  • R. v. R.P. (Ontario Court of Justice, Scarborough): A teacher was accused of more than 15 offences against eight different students. After negotiations, all but six of the charges were dropped before trial. The defence at trial was that collusion among students interested in getting the teacher fired led to false accusations being made against him. After a trial, the teacher was acquitted of all counts.
  • R. v. F.D. (Ontario Court of Justice, Newmarket): A teacher was accused of sexual assault against a student. At trial, the cross-examination of the complainant showed that the allegations were implausible and unlikely to have occurred in the way they were described. The teacher testified and, after closing submissions, was acquitted on all counts.

Disclaimer: Every criminal case depends on its own unique set of facts and legal issues. Past success does not mean the same result can be obtained in future cases. We look at each case individually and base our approach on the specific challenges it presents.

Contact us about your case

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Telephone: 416-649-5061
Email: info@gsllp.ca

Address:
116 Simcoe Street, Suite 100
Toronto, ON
M5H 4E2